Teacher's Lawsuit Over Using Pronouns Sheds Light On Undue Hardship Standard

A recent decision from the U.S. District Court for the Southern District of Indiana applying the U.S. Supreme Court decision in Groff v. Dejoy offers employers and schools some valuable insight on how to handle requests for religious accommodations related to the required use of pronouns differing from the student's assigned sex at birth.

In Groff v. Dejoy, the Supreme Court held that the "more than a de minimis cost" standard for proving Title VII undue hardship was incorrect and that religious accommodations must pose "substantial increased costs" to an employer to constitute undue hardship.

In the Indiana case, Kluge v. Brownsburg Community School Corp., a teacher, who identifies as a Christian and member of Clearnote Church, objected to an Indiana public school policy on the use of a student's name and pronoun on religious grounds. Among other things, the teacher believed that it is sinful to promote gender dysphoria. The school policy stated that if a student, their parents and a health care provider requested that the student be called by a name and pronoun, that information would be entered into an official database and teachers were required to use it.

The school granted an accommodation to the teacher for a year, which allowed him to only refer to students by their last names. After the school received complaints from parents, students, and other school members that the teacher's practice was detrimental to transgender students' well-being and the educational environment for students and faculty, it withdrew the accommodation.

The teacher filed suit and asserted various claims including religious discrimination under Title VII. The case was initially dismissed on summary judgment but was remanded after the Groff decision. On remand, the district court again granted summary judgment in favor of the school, reasoning that:

• While Groff removed some costs from consideration of undue hardship such as temporary costs of voluntary shift swapping, occasional shift swapping, or administrative costs, it left non-economic costs untouched.
• There are no bright-line rules in evaluating what amounts to "substantial costs" under Groff.
• Substantial hardship standard must be evaluated in the context of an employer's business as a matter of common sense.
• In contrast to many for-profit businesses, the school's stated business was educating all students by fostering a learning environment of respect and affirmation.
• Accommodating the teacher resulted in significant disruption from the learning environment and harmed the school's stated business.
• Continuing with the accommodation would have exposed the school to unreasonably risk of liability including a Title IX discrimination lawsuit.

The decision also outlined how treating transgendered individuals differently invites litigation under a variety of theories including Title IX and Title VII, some of which have been successfully litigated. Amongst other authorities, the court cited the 2020 Supreme Court decision in Bostock v. Clayton County, Georgia holding that discrimination under Title VII because of an individual's transgender status is always based upon gender-stereotypes.

Below are key takeaways for employers and educational institutions grappling with how to address requests for religious accommodations in connection with pronouns differing from the student's assigned sex at birth:

• Always engage in the interactive process in evaluating accommodation requests.
• Document in detail the basis for grants or denials.
• Revisit accommodations if circumstances change or an undue hardship emerges.
• Consider whether grant of an accommodation would infringe upon rights of others or expose the organization to risk of liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.